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Gilmore v. State of Mississippi

United States Court of Appeals, Fifth Circuit

September 26, 2018

KARLENE GILMORE, Plaintiff-Appellant
v.
STATE OF MISSISSIPPI; MISSISSIPPI MILITARY DEPARTMENT; GREGORY MICHEL, Individually; UNITED STATES OF AMERICA, Defendants-Appellees

          Appeal from the United States District Court for the Southern District of Mississippi

          Before DAVIS, JONES, and ENGELHARDT, Circuit Judges.

          EDITH H. JONES, Circuit Judge

         Karlene Gilmore's lawsuit against the Installation Commander of Camp Shelby Joint Forces Training Center in Mississippi was dismissed and her remand motion denied based on the district court's conclusion that Colonel Michel, a member of the Mississippi National Guard, is a federal employee shielded by the Westfall Act from individual liability. 28 U.S.C. § 2679(d). We AFFIRM.

         BACKGROUND

         Karlene Gilmore ("Gilmore") was a civilian employed by the Mississippi Military Department at the All Ranks Club on Camp Shelby in Forrest County, Mississippi. In early 2017, Gilmore sued the State of Mississippi, the Mississippi Military Department (collectively, "State Appellees"), and Colonel Gregory Michel ("Michel"), her supervisor at the All Ranks Club, for wrongful suspension and termination because she reported criminal acts of another employee, Raven Fairley ("Fairley"), to Michel, who had a close relationship with Fairley. Gilmore alleged that Fairley was stealing and giving away alcohol in violation of state law. When Gilmore reported Fairley's acts to Michel in October 2015, she was instructed to gather more evidence, witness statements, and video footage. Cameras installed in the All Ranks Club captured Fairley's actions, but Gilmore was told that she needed more evidence. She gathered more statements and evidence, but Michel allegedly instructed her to stop "counseling and reprimanding" Fairley. Gilmore formally requested Fairley's termination on or about January 27, 2016.

         Gilmore alleged that her work environment became increasingly hostile following this request, and Michel attempted to have her fired before she was finally suspended and terminated. Consequently, she alleges wrongful discharge for reporting criminal acts of another to her employer.

         Acting on Michel's behalf, the United States removed the action to federal court pursuant to 28 U.S.C. § 1442, 1442(a), and the Westfall Act, 28 U.S.C. § 2679(d)(2). The government moved to substitute the United States as a defendant in place of Michel pursuant to the Westfall Act and accompanied its motion with a "Certification of Scope of Employment Under 28 U.S.C. § 2679(d)," executed by the acting United States Attorney for the Southern District of Mississippi. The certification stated that Michel was acting within the course and scope of his employment as an active guard reserve soldier in the Mississippi Army National Guard serving under Title 32 military orders at the time of the alleged conduct. The government also filed a declaration by Colonel Amos P. Parker, Jr. ("Parker") of the Mississippi National Guard, who also serves as the chief of staff for the Adjutant General of the Mississippi National Guard, which stated that Michel was acting in the course and scope of his official military duties with the Mississippi National Guard as the installation commander for the Camp Shelby Joint Forces Training Center for the entirety of the relevant time period. Ordinarily, such certifications are deemed conclusive in favor of removal. See 28 U.S.C. § 2679(d)(2).

         Gilmore contested, however, that Michel could claim the status of a federal employee in his dealings with her employment and sought remand to state court. The State Appellees filed motions to dismiss based, inter alia, on state sovereign immunity.[1] The federal government also moved to dismiss for lack of subject matter jurisdiction arising from Gilmore's failure to comply with the pre-suit requirements of the Federal Tort Claims Act ("FTCA"). See 28 U.S.C. § 2671, et seq.

         The district court initially denied the United States' motion to substitute and granted Gilmore's motion to remand, but upon reconsideration, it reversed course. The district court explained that its previous order relied upon the government's "bare statement" in its original memorandum that Michel was a federal employee as defined by 28 U.S.C. § 2671. The government had cured this deficiency by subsequently elaborating that Michel was a federal employee under 32 U.S.C. § 502(f)(1), which states that "a member of the National Guard may . . . be ordered to perform training or other duty in addition to that prescribed under subsection (a)." Colonel Parker's declaration reinforced that Colonel Michel's position as installation commander was assigned to him pursuant to Section 502(f) and included the "obligation to oversee non-appropriated fund instrumentalities" such as the All Ranks Club. Therefore, the court concluded that Michel was a federal employee acting within the scope of his employment, and under 28 U.S.C. § 2679(b)(1), Gilmore's only remedy is a suit against the United States. The district court then granted the government's motion to dismiss Gilmore's suit for lack of subject matter jurisdiction because she had not filed an administrative claim as required by the FTCA.

         The district court entered judgment in favor of all defendants on August 9, 2017. Gilmore timely appealed.

         STANDARD OF REVIEW

         This court reviews de novo issues of subject matter jurisdiction, including a district court's denial of a motion to remand. In re 1994 Exxon Chem. Fire, 558 F.3d 378, 384 (5th Cir. 2009). Similarly, we review de novo whether an individual is an employee of the government as defined by the Federal Tort Claims Act. Peacock v. United States, 597 F.3d 654, 659 (5th Cir. 2010). "We review the district court's legal ...


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